Fri Feb 7

Misleading and false election ads are legal in Australia. We need national truth in political advertising laws

Written by: Yee-Fui Ng, Associate Professor, Faculty of Law, Monash University

The highly pertinent case of a little-known independent candidate in the Victorian seat of Wannon has exposed a gaping hole in Australia’s electoral laws, which allow for misleading political advertisements in the lead-up to an election campaign. It’s all entirely legal and is already being exploited to try to shape the outcome of the coming federal election.

Conservative activist group Advance Australia has widely distributed ^[1] digitally altered flyers attacking independent Alex Dyson, who is challenging senior frontbencher Dan Tehan.

It’s part of a campaign to damage Dyson’s electoral prospects after he helped slash the Liberal Party’s margin in the seat at the last election ^[2] to less than 4%.

The material depicts Dyson ripping open his shirt in a “Superman” pose, to reveal a t-shirt bearing the official Greens party logo.

Dyson is not a Greens candidate. So why are the ads permissible? And what does it tell us about the urgent need for truth in political advertising laws to prohibit material that lies to voters?

Why are misleading ads allowed?

Section 329 of the Electoral Act prohibits ^[3] the publication of material likely to mislead or deceive an elector in casting their vote.

But in a narrow interpretation by the Electoral Commission, the ban only applies after an election has been called by the prime minister.

That means the Wannon ad, and maybe countless others like them from across the political spectrum, could be distributed for months without repercussion.

Advance Australia has form when it comes to misleading material.

At the 2022 election, it displayed ^[4] placards that falsely depicted independents David Pocock and Zali Steggall as Greens candidates.

In that case, the Electoral Commission ruled ^[5] that because the corflutes were deployed during the campaign proper, they breached the electoral laws.

Independents David Pocock and Zali Steggall were targeted by misleading campaign material a the 2022 election. Dan Himbrechts/AAP ^[6]

It is absurd and dangerous to democracy to have a law that only bans ads that mislead voters in casting their vote during the official election period, and allows them to proliferate unchecked at other times.

It should not be permissible to lie to voters just because of a technicality. In an era of permanent campaigning ^[7], voters can be influenced by political messages received well before a campaign officially starts.

Furthermore, there is little justification for allowing political parties to mislead while banning corporations from engaging in misleading and deceptive conduct. If consumers and shareholders are protected from fraudulent and dishonest claims, why not electors, who have the solemn task of deciding who runs the country?

How can the electoral laws be fixed?

There are available remedies to the problem, starting with reforming the Electoral Act. It should be clearly specified that the provision on misleading electors applies to any material calculated to affect the result of an election, regardless of when it is distributed.

Broader truth in political advertising provisions should also be introduced. This would cover a wider range of factually misleading ads beyond the existing narrow ambit of misleading a voter in the casting of their vote.

If the Electoral Commission determines the material is false or misleading to a material extent, it would order a withdrawal and a retraction.

Importantly, the laws would be confined to false or misleading statements of fact. Parties and other political players would still be free to express their opinions. Freedom of speech would not be impeded.

Parliamentary stalemate

The Albanese government has taken tentative steps to fix the problem. Truth in advertising laws introduced ^[8] to parliament last year would have forced Advance Australia to retract and correct its dishonest flyers in Wannon.

However, the bill was pulled due to a lack of support.

Prime Minister Anthony Albanese and Opposition Leader Peter Dutton facing each other in Parliament

Labor and the Coalition are at loggerheads over proposed bill on truth in political advertising. Lucas Koch/AAP ^[9]

Any doubters on the opposition benches should look to the experience in South Australia and the ACT, which have both enacted truth in advertising laws.

My research ^[10] has shown these laws operate effectively in both jurisdictions.

What’s at stake

Spreading political lies has the potential to cause harm on multiple fronts.

The first is the damage to the candidate or political party in terms of their reputation and electoral prospects.

The second danger is to the integrity of the electoral process if lies cause people to switch their votes to such an extent that it changes election outcomes.

The spread of disinformation has become prevalent in an era of “fake news” and “alternative facts”, exacerbated by the rise of social media.

In 2024, the World Economic Forum’s Global Risks Report ^[11] ranked misinformation and disinformation as the most severe risk facing the world over the next two years.

False information can alter elections, affect voting participation, silence minorities, and polarise the electorate. It is time to reform our electoral laws to mitigate the significant dangers to our democratic system.